Frank and Bonnie Kottschade pose on the steps to the Supreme Court building.

The U.S. Supreme Court on Oct. 3 heard arguments in , an important land use case which could decide whether a plaintiff can bring a Fifth Amendment “takings” claim in federal court. NAHB filed a merits-level in June.

It’s very difficult today for a property owner to bring a takings claim into federal court because of the 1985 Supreme Court decision, . Williamson County requires, in part, that a property owner go through state proceedings prior to bringing a takings case in federal court.

There are a number of reasons why this is troublesome for property owners.

First, forcing owners to first go through state court and then essentially relitigate the case in federal court greatly increases the time and cost of land use litigation.

Second, Williamson County allows the government to remove a takings case from state court to federal court but does not allow a plaintiff to do so. This creates an unfair advantage where governments can “forum shop” by picking the more favorable court, whereas property owners are not permitted to do the same.

Third, once governments remove a takings case from state court to federal court, they often file a motion to dismiss the case to prevent the claimant from ever having her day in court.

It is difficult to know how the Supreme Court will rule on Knick. In oral arguments, justices seemed to agree that there is a problem with Williamson County at some level, particularly with successful efforts by governments to remove a case to federal court and then to have it dismissed under Williamson County. As Justice Breyer stated, a simple fix would be “to write a sentence saying that’s wrong, [governments] have waived it.”

However, it was much less clear as to whether to court is willing to overturn Williamson County in its entirety. Some justices were convinced that the principle of stare decisis would apply in this case: the judicial principle that courts should generally stand by and uphold earlier precedents.

NAHB ensured that longtime NAHB members and property rights advocates Frank and Bonnie Kottschade had seats in the courtroom. Frank, who has pursued multiple lawsuits on issues that benefit all NAHB members, filed a brief in this case and traveled from Minnesota to see the argument in person.

NAHB expects the court to issue a decision by the end of the year. For more information, contact Vice President for Legal Advocacy Tom Ward.